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Addressing the challenges of overseas surrogacy

Guidance: Surrogacy overseas

British nationals who are considering entering into surrogacy arrangements in foreign countries are advised to be aware of their responsibilities under UK law regarding British nationality and commercial surrogacy. New guidance on surrogacy overseas has been issued by the Foreign and Commonwealth Office, based on advice from the Home Office.

What are the biggest legal problems in the use of overseas surrogacy?

Most legal problems which come up in the context of an overseas surrogacy arise from the failure of legal systems internationally to update legislation to reflect this rapidly developing area of law. The UK, for exam-ple, has a different definition of 'father' as between the British Nationality Act 1981 (BNA 1981), the Human Fertilisation and Embryology Act 2008 and the Immigration Rules, showing the disjointed nature of legislation in this area.

The specific problems which can arise will vary between jurisdictions, but in the UK context typically fall into one of the following four categories:

whether the commissioning parents are treated as the legal parents of the child (in the country where the child is born as well as the country where the commissioning parents are residing)

what parental responsibility the parents will have for the child

the nationality of the child (if any)

the immigration status a child will have in the country where the commissioning parents are re-siding

This is a broad characterisation of the areas which regularly crop up. However, it is important to note that due to the nature of these arrangements, various fact- and country-specific difficulties regularly arise.

What are the challenges re the nationality of a child born overseas to a surrogate?

British nationality can descend one generation to a child born outside of the UK. Under BNA 1981, s 9, a child's mother will be defined as the woman who gives birth to the child. A British commissioning mother cannot, therefore, pass their British nationality on to their child born outside the UK to a non-British surrogate mother.

The definition of father is less succinct. For the purposes of BNA 1981, the father will be the husband of the surrogate mother in the first instance where the surrogate mother is married. However, if the surrogate mother is single, the father can be a commissioning parent if he 'satisfies prescribed requirements as to proof of paternity'.

It is possible for a commissioning father to pass on their British nationality where he satisfies the prescribed requirements and paternity is proven--generally achieved by DNA test. Where the surrogate mother is un-married, British nationality can therefore be passed on automatically.

Where the child is not automatically British, either because the surrogate mother is married or because there is no genetic link or an issue with the parents passing on their British nationality, an application can be made for the child to be registered as British at the discretion of the Secretary of State. Under BNA 1981, s 3(1), the Secretary of State has broad discretion to register any child as British. The statute permits registration where the Secretary of State 'thinks fit' to do so. There is specific guidance as to when it is appropriate for discretion to be exercised in a surrogacy scenario and examples of the types of evidence which needs to be adduced. It is certainly advisable to provide evidence to as great an extent as possible that the child falls within the guidance. However, as s 3(1) is framed in such wide terms, it is possible for a child to be registered even where they do not fall within the exact terms of the guidance.

If an application for registration is not made but one or both parents are able to pass on their British citizen-ship to a descendant child, and they make a successful application for a Parental Order, the child will be-come British automatically on the making of that Order. This should not necessarily preclude parents from a registration application though, particularly if the child needs a British passport to leave the country where they were born. This would particularly be the case in countries like India where the child will not usually be issued with an Indian passport and is effectively stateless.

What procedural requirements may need to be satisfied to bring a child into the UK born to an overseas surrogate:

Where a commissioning parent is British?

The Foreign and Commonwealth Office has recently tried to consolidate the procedural requirements British parents must have reference to when looking to bring their child back to the UK by publishing specific de-tailed guidance on this area.

The procedure to be followed here will depend on whether the surrogate is unmarried and whether the child is automatically British. Where the child is automatically British, an application for a British passport can be made immediately. The surrogate mother should sign this application for a British passport because she will still have parental responsibility for the child unless a Parental Order has been made.

Where the child is not British, a two-stage process is required as a registration application needs to be made and approved before a passport application can be submitted.In countries which embrace surrogacy, such as the USA, the child will be able to obtain an American pass-port on birth allowing them to travel before their British nationality matter is resolved. In these circumstances, it is also possible to make an application for entry clearance within or, at discretion, outside the Immigration Rules as discussed below.

Where neither commissioning parent is British, eg EEA nationals or individuals with limited or indef-inite leave to remain in the UK?

There is a guidance leaflet titled 'Inter-Country Surrogacy and Immigration Rules', which explains the routes for entry clearance under the Immigration Rules to the UK for a child born of an overseas surrogacy ar-rangement.As well as entry as a British citizen, the guidance also deals with entry:

under para 297 of the Immigration rules (where the father of the commissioning couple meets the definition of 'parent' in the Immigration Rules); and

at discretion outside of the Immigration Rules

However, the leaflet contains no specific procedure for commissioning parents to follow where neither com-missioning parent is British or in possession of indefinite leave to remain. If the commissioning father satis-fies the definition of 'parent' in the immigration rules, it may be possible for the child to be granted limited leave to remain in line with him as his dependent.

Otherwise, parents would need to make a discretionary application outside of the Immigration Rules for the child to be granted entry clearance. One of the key difficulties is that the exercise of discretion envisaged in the guidance leaflet is heavily premised on the ability of the commissioning parents to obtain a Parental Or-der in the UK once the child has arrived. One of the statutory requirements to qualify for a Parental Order is that one of the commissioning parents is domiciled in the UK. If neither parent has either indefinite leave to remain or British citizenship, it may be difficult to satisfy a court that they are in fact domiciled in the UK. Parents in these situations are in a very difficult position and may even find that starting an adoption process in respect of the child is the easiest way to proceed.

What should lawyers be advising clients who are considering using an overseas surrogate?

Lawyers are, to an extent, constrained as to the advice they can provide to clients considering using an overseas surrogate by the Surrogacy Arrangements Act 1985, s 2(1), which makes it a criminal offence to do any of the following on a commercial basis in the UK:

initiate or take part in any negotiations with a view to the making of a surrogacy arrangement

offer or agree to negotiate the making of a surrogacy arrangement

compile any information with a view to its use in making, or negotiating the making of, surrogacy arrangements

It is therefore important for lawyers to consider very carefully which aspects of a surrogacy arrangement they can offer advice in respect of.

Clients should be advised to seek guidance as early as possible in respect of all legal aspects of an over-seas surrogacy arrangement. Local counsel in the country where the surrogacy arrangement is taking place need to be instructed to advise on the implications of the surrogacy in that country at the earliest opportunity.

Commissioning parents need to be advised on their rights and responsibilities in respect of the child in the country where the surrogacy is due to take place as well as in the UK, and there must be a plan for how the child is to be returned to the UK. However, it is also important that parents consider their own immigration status in the country where the child is to be born. Immigration and nationality issues, as well as any extend-ed medical treatment the child may require before travelling, can mean that the parents have to spend sev-eral months in that country before returning as a family to the UK. It is important they remain lawfully present during this time.

What are your predictions for future developments in this complex area?

Recent studies have addressed the possibility of harmonising surrogacy regulations across jurisdictions as the option is becoming increasingly popular. The success of the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption in both facilitating adoption across borders and in ensuring protections and safety measures exist to prevent exploitation can be seen as something to aspire to. However, we are still far from such an outcome, primarily because there is so little consensus on the moral and ethical questions surrogacy raises and no consensus on the correct approach to take.

Specific provisions within the Immigration Rules to cater for commissioning parents with limited leave would be a particularly welcome development so these parents are not prevented from entering into surrogacy ar-rangements or bringing the resulting child to the UK.

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